EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF CASE NOS.
Rimvydas Butkys – claimant UD260/2015
TE109/2015
against
Coogan Meats Limited – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. MacCarthy SC
Members: Mr F. Cunneen
Mr M. O’Reilly
heard this claim at Dublin on 16th May 2016
Representation
Claimant: Mr Jadel Naidoo BL instructed by FH O’Reilly & Company Solicitors,
The Red Church, North Circular Road, Phibsboro, Dublin 7
Respondent: Ms Caoimhe O’Rourke BL instructed by Rennick Solicitors,
Main Street, Dunboyne, Co. Meath
The determination of the Tribunal was as follows:-
The fact of dismissal was in dispute.
The respondent in this case is a meat processor. The claimant started working for the father of the managing director of the respondent business in about November 2009. In August 2010, without a break in his service, he went to work in the slaughterhouse.
On 14 November 2014 a serious incident occurred on the respondent’s premises. The lid covering the blood tank was removed and as a result a driver delivering pigs was endangered and 3 pigs fell into the tank and drowned. The managing director questioned the 7 men working on the slaughter line, including the claimant, to discover who was responsible for removing the lid. They all said that they didn’t know.
The managing director then informed the 7 men that if no one accepted responsibility he would deduct the cost of the lost pigs from their wages. No one came forward. On the following Friday, €50 was deducted from the wages of each of the 7 employees.
The claimant maintained that the incident occurred before he arrived at work. He was not present at any meeting to discuss the incident. On 24 November 2014 the claimant went to the office to collect his wages. His money was €50 short. He was annoyed but did say anything to the women in the office because his English is poor and he knew that everything is recorded on CCTV. TC was in the office. As he was leaving NA informed him that the managing director DC had decided to fire him and that he should call to the office the following week and collect his p.45. His last day a work was 25 November 2014. DC was at work that day but the claimant did not speak to him. In fact he avoided him.
On the following Monday he did nothing he was waiting for a phone call. He got his p.45 on the Tuesday. He was surprised to be fired because he was a good worker.
He was never given pay slips. He kept a note of the hours he worked every week and passed it on to DC who signed it and he was then paid for his hours. When shown a contract of employment the claimant said he had been told it was an insurance document when he was asked to sign it and he was never given a copy. The claimant does not read English well and relies on friends or Google if he needs to understand a document.
A colleague of the claimant told the Tribunal that DC had asked him to talk to the claimant and ask him to come and talk. DC thought the other employees did not like the claimant because he was a fast worker.
Respondent’s Case
An administrator, NA gave evidence. She gave the claimant two copies of his first contract of employment on 7 December 2012. He returned a signed copy to her on 10 December 2012 and kept the other one.
DC told her of the incident on 19 November 2014. Three pigs died and DC said unless the person who left the lid off the tank came forward he would deduct the cost from the wages of all employees. It was calculated at €50 per employee.
The claimant was very upset to discover that his wages were reduced. He stormed back into the office. He was shouting and aggressive. When he left the office, then came back and shouted some more, she and TC phoned DC who asked them to tell the claimant to go home and come back on Monday. They felt safer talking to the claimant outside so they went out and told him to go. He was annoyed and started shouting again. They turned off the lights in the office. Shortly afterwards they saw the claimant depart on the CCTV and they grabbed their stuff and left quickly.
On Monday morning the claimant phoned asking for his p.45. DC said to prepare it. She did not tell the claimant he was fired.
TC gave evidence. When she arrived at work on 19 November 2014 NA told her about the incident. Later that week when the claimant realised his wages were reduced he was annoyed. He thought a deduction of €20 or €30 would have been enough. He stormed out the door. He returned to the office and asked her why she disliked foreigners. The claimant spoke to NA about the deduction from his pay to her he spoke about discrimination. When NA phoned DC he advised them to let the claimant cool down and then tell him to go home. She was frightened and was in tears. She was aware that there were knives on the kill floor nearby. They contacted DC but at the time it did not cross her mind to phone the Gardaí.
On Monday she prepared the claimant’s p.45 and he collected it before lunchtime.
The managing director, DC, gave evidence. On Friday 21 November 2014 he was not on the premises at all. He had to be at sales in Kildare by about 6.00am and did not get home until 10.30pm. NA phoned him at about 4.30pm to say that the claimant was not happy about the deduction. Both women were upset. The first time they phoned him he told them to let him cool down for 10 minutes. When they phoned again he asked them to tell him to go home and sort out the difficulty on Monday. He did not tell the women to fire the claimant. He would not tell 2 vulnerable women to deliver such a message to an agitated man. It was almost time to go home so he thought pull the pin go home and he thought he could sort it on Monday. He thought it could be sorted as the claimant was a good worker and he had a good enough relationship with him.
The Rights Commissioner found the deductions from pay were unlawful.
Determination
The Tribunal carefully considered the evidence adduced in this case. Two widely divergent accounts were given of how the claimant’s employment terminated. The claimant said that he was fired while the respondent said that he in effect walked off the job. The evidence of DC was largely irrelevant because he was not on the premises on the claimant’s last day at work. The Tribunal preferred the evidence of TC, and found her evidence measured and entirely credible .The claimant did not satisfy the Tribunal that the termination of his employment was as a result of dismissal. The claim under the Unfair Dismissals Acts 1977 to 2007 fails.
The appeal of the recommendation of the Rights Commissioner under the Terms of Employment (Information) Act 1994 reference number r-153971-te-15/JW also fails and the recommendation of the Rights Commissioner is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)